Pretrial Practice & Discovery

Articles

2019

Discovering Cryptoassets: A Journey into the Unknown
By Andrew Hinkes – May 24, 2019
Litigators need to understand how cryptoassets function to conduct successful discovery.

Top Tips for Top-Notch Motions in Limine
By Anna Manasco – May 24, 2019
Thanks to motions in limine, trials may be won or lost before they even begin.

A Road Map to Autonomous Vehicle Discovery
By Peter Moomjian – May 24, 2019
Cases are won and lost in the discovery phase—and autonomous vehicle litigation will be no different. 

An Etiquette Primer for Working with Transgender Clients and Colleagues
By Ilona M. Turner – May 24, 2019
Transgender cultural competency at its core only requires following commonsense rules of etiquette. 

Blockchain in State Law: 10 Key Developments in 2019
By Margaret Lyle – May 24, 2019
Many important developments in blockchain technology have already emerged this year.

E-Discovery Challenges and Information Governance Solutions
By Lucas Newcomer and Johnny Lee – February 14, 2019
Information governance is a proactive alternative to the challenges of data proliferation.

Transparency or Translucency: Guidance on TAR Protocols Is Not Crystal Clear
By Rose J. Hunter Jones and Priya Kolli Funderburk – February 14, 2019
There is no one-size-fits-all TAR protocol.

Sanctions: 2018 Case Law Update
By Samantha Green – February 14, 2019
Despite the intentions of the amended Rule 37(e), the 2018 decisions were still inconsistent.

No Stone Unturned: Targeting Unknown or Unique Data Sources During Discovery
By Thomas J. Gersey and Derek M. Duarte – February 14, 2019
It can be difficult to predict where a company's most relevant information lives.

Tweets: Who Has Possession, Custody, or Control?
By Sumera Khan – February 14, 2019
Examining the implications of Shenwick v. Twitter.

2018

Implications of Text Bias in E-Discovery
By John Martin – November 16, 2018
Lawyers who use text-based technology should at the very least be aware of pro-text biases that can affect how well e-discovery processes work.

A Unified Theory of Standards for Third-Party Discovery
By Andrew J. Felser – November 16, 2018
Special problems arise when nonparties hold relevant documents or information.

Technology-Assisted Review for Smaller Cases
By Steven C. Bennett – November 16, 2018
Conventional wisdom holds that TAR is useful and efficient only for large cases. Conventional wisdom is wrong.

Information Law, Career Counseling, and Certifications
By James A. Sherer – November 16, 2018
When you go through a credentialing process and come out the other side, you have become one of a select few.

Cross-Border E-Discovery Meets Data Privacy Protection in the European Union
By Mark Austrian and Christopher Loeffler – June 26, 2018
A company's obligation to produce ESI transcends geographical borders, but the privacy restrictions of the GDPR make discovery challenging.

Questions to Ask about Forensics Examinations
By Tom O'Connor – June 26, 2018
Clients often come to the table with unreasonable expectations about what a forensics examination involves.

Tiered Discovery: An Efficient Proportionality Solution?
By Steven C. Bennett – June 26, 2018
A tiered system of discovery has different rules to handle different cases depending on their size and complexity.

The Indispensable Junior Litigation Associate
By Dorian Simmons – June 26, 2018
Junior litigation associates can become good project managers by learning how to drive cases.

A Home-Court Advantage?: International Discovery in a Global Economy
By Zahava Moerdler – June 26, 2018
Unlike in most foreign jurisdictions, one of the key tools for litigation in the United States is its extensive allowance for discovery.

Making Sense of the ESI Madness
By Samuel T. Smith and Chelsea J. Glynn – June 26, 2018
Instead of combing through physical files and making copies for discovery, lawyers nowadays review ESI.

Effective Juror Selection Strategies
By Steven D. Ginsburg – March 20, 2018
Voir dire is ostensibly for choosing an objective, impartial jury, but nothing could be further from the truth.

The “Internet of Things”: New Challenges in Civil Discovery
By Kristen B. Weil and Ronald J. Hedges – March 20, 2018
Attorneys must grapple with new forms of ESI, and understand how existing discovery rules apply to the IoT just as they do to more traditional forms of data.

Challenges in Preserving and Using IoT Data
By H. Michael O’Brien and Daniel M. Braude – March 20, 2018
The traditional approach of retaining a single expert to opine on the failure of a "dumb" product is going the way of "dumb" products.

Form Fights: Battles over Content and Proportionality
By Steven S. Gensler and Xavier Rodriguez – March 20, 2018
"Form fights" are not mere technical matters of interest only to the pocket-protector crowd.

Amended Rule 37(e): The "Independent" Obligation to Preserve
By Thomas Y. Allman – March 20, 2018
The ethical duty of physicians to retain patient records may rise to the level of a legal duty to preserve records.

Presidential Tweets, Yelp Reviews, "FREE BOOZY," and Admissibility
By Keith S. Dubanevich – March 20, 2018
Social media and the Internet have opened up new worlds of communication—and they have also opened up new worlds of evidence and admissibility issues in the legal context.

2017

Deconstructing “Discovery about Discovery”
By Hon. Craig B. Shaffer – December 21, 2017
What is becoming a catchphrase should instead be a reasonable discussion between requesting and producing parties.

Papazian: Copyright, Statute of Limitations, and Statutory Damages
By Dorian Simmons – December 21, 2017
Allowing for statutory damages where actual damages are barred would effectively transform statutory damages into punitive damages.

Who Has Access to Decedents' Electronic Assets and Social Media?
By Michael L. Fox – December 21, 2017
What happens to online assets and properties after we die? The answer is more complicated than you might expect.

Discovering Off-the-Record Conversations Between a Deponent and His or Her Counsel
By Joseph V. Schaeffer – December 21, 2017
In re Stratosphere expresses a far more generous view of attorneys than Hall.

Three Steps to Getting a Social Media Posting Admitted at Trial
By Chelsea Glynn – December 21, 2017
Opponents may challenge authentication by asserting the possibility that others created a fake account in a person’s name.

Service of Process Through Facebook Getting "Likes" from Courts
By Thaddeus Hoffmeister and John R. Hardisky – August 31, 2017
What if service of process via social media were viewed as a viable, first-choice method of service?

Demands to Produce ESI: Demonstrating Undue Burden and Cost
By Ronald Hedges – August 31, 2017
Quantification based on "best predictions" is vital whenever a party challenges a discovery demand on the basis of undue cost.

Protecting Breach Investigation Reports in Litigation
By Brad C. Moody and Robert F. Walker – August 31, 2017
The more time that passes between when the breach is made public and the filing of litigation, the more likely it is that a court will rule against a finding of privilege.

10 Tips: Best Email Practices
By Stewart Edelstein – March 28, 2017
How to manage emails, how to avoid an inadvertent waiver of privilege, how to draft emails, and when not to send emails.

Practical Advice on the Management of Complex Litigation
By Ronald Hedges and Tracy A. DiFillippo – May 23, 2017
Rule 26(f) of the Federal Rules of Civil Procedure serves as a powerful guide.

How to Succeed in Litigation: An Ounce of Preparation Is Worth a Pound of Cure
By Steven Ginsburg – May 23, 2017
Our professional responsibility dictates thorough pretrial preparation and investigation as the cornerstone of undertaking any legal matter.

Don’t Forget about Me(tadata)!
By Diane Quick – May 23, 2017
Metadata can be the first red flag or line of defense when questions of data spoliation arise.

Removal Jurisdiction: Strategic Considerations for the Fraudulently Joined Defendant
By Jordan Redmon – May 23, 2017
Counsel sometimes forget that the real battle is fought in opposing remand—not in initially removing the case.

Five Tips for a More Effective Motion Practice
By Robert J. Will – March 2, 2017
Just because you can file a motion does not mean that you should.

How to Prepare a Winning Motion for Summary Judgment
By Eric N. Macey – March 2, 2017
Five simple rules to follow.

Pulling Teeth: Five Tips for (Relatively) Pain-Free Discovery
By Daniel T. Pesciotta – March 2, 2017
No judge will be pleased to hear that the parties did not make a good-faith effort to resolve their dispute before taking up the court’s time with a discovery motion.

“Competence,” Litigators, and ESI in the Digital Age: Part 2
By Ronald Hedges and Amy Walker Wagner – March 2, 2017
Attorneys should consider their proficiency with ESI and not blindly use technology with which they have no level of competence.

2016

How to Make Objections to Discovery under the Amended Rules?
By Tracy DiFillippo – November 15, 2016
Boilerplate objections are no longer acceptable under the amended Federal Rules of Civil Procedure.

Social Media and Encrypted Data in Discovery
By Ronald Hedges and Kristen B. Weil – November 15, 2016
The ever-expanding world of ESI poses a challenge to civil litigators who must stay abreast of new forms of social media and data encryption.

“Competence” in the Digital Age: What a Litigator Should Know about ESI, Part 1
By Ronald Hedges and Amy Walker Wagner – November 15, 2016
As technology has advanced, so has the definition of competence.

Discovery Sanctions under Amended Rule 37(e): A Safe(r) Harbor
By Michael J. Miles and Jeffrey E. Jakob – August 30, 2016
Early decisions applying the new Rule 37(e) should give comfort to potential litigants who have worked in good faith to preserve potentially relevant ESI.

Supreme Court Watch: A Look Ahead to the October 2016 Term
By Scott N. Wagner and Veronica Gordon – August 30, 2016
The Supreme Court addresses the right to appeal class action certification denial, and more.

Getting It Right: Confidentiality and Sealing Standards
By Ronald Hedges – August 30, 2016
The confidentiality of discovery materials is fundamentally different from the sealing of materials filed with courts or the sealing of judicial proceedings.

Be Prepared: Application of Work-Product Privilege to Deposition Preparation Materials
By Amy Frenzen – July 25, 2016
Precautionary steps to take ahead of a deposition.

Recent Decision Highlights Competing Approaches to Social Media Discovery
By Eric B. Levasseur – May 18, 2016
A New York appellate court says no to broad discovery of social media accounts.

Proportionality under Amended Rule 26(b)(1): A New Mindset
By Michael J. Miles – May 18, 2016
How courts have reacted to the amended rule and how defense practitioners can use it to streamline discovery.

The "Other" December 1 Amendments to the Federal Rules of Civil Procedure
By Ronald Hedges – May 18, 2016
Beyond the focus on sanctions in commentary on the 2105 amendments, how to avoid a sanctions fight in the first place.

Deploying Text Analytics and Speech Recognition to Manage Audio Files in E-Discovery
By Peter Gronvall and Nathaniel Huber-Fliflet – May 18, 2016
Talk is the new doc.

2015

Maintaining Privacy and Confidentiality in Litigation: Can It Be Done?
By Ronald J. Hedges - December 3, 2015
What considerations guide the use of private or confidential information, and what should an attorney do to protect it?

Away with Words: The Myths and Misnomers of Conventional Search Strategies
By Thomas I. Barnett - December 3, 2015
There are other ways to attack the problem of keyword searches and predictive coding thanks to some recent advances in technology and data science.

Rule 30(b)(6) at 45: Is It Still Your Friend?
By Eric Kinder and Walt Auvil - December 3, 2015
Is the rule, now entering middle age, still accomplishing the goals it was designed to achieve?

How Far Do the Protections of the Rule 26 Amendments Go?
By Michael Lowry - March 2, 2015
Exploring how the work-product provisions of the 2010 amendments regarding expert discovery have been applied and interpreted.

Technology-Assisted Review: Insight into Lingering Questions
By Jenny Le - March 2, 2015
A recent Georgetown panel and case law reveal how far TAR has come.

Why I Love Rule 36, and Why You Should Too
By Fitzgerald T. Bramwell - March 2, 2015
Requests to admit are the Rodney Dangerfield of pretrial procedure: They get no respect.

Lessons from Procedural Lapses That Sent Smokers' Claims Up in Smoke
By Jeffrey G. Close - March 2, 2015
Five pearls of wisdom from the Florida tobacco litigation.

Domestic Transaction Test Applied to Private Action under CEA
By Steven M. Richard - March 2, 2015
The Second Circuit leaves open the door for governmental enforcement of the Commodities Exchange Act's antifraud provisions.

2014

Changes to FRCP 45 Substantially Alter Federal Subpoena Practice
By Steven C. Corhern – November 18, 2014
The 2013 amendments to Federal Rule of Civil Procedure 45 altered the requirements for issuing, serving, and opposing a domestic federal subpoena.

Avoiding the Pitfalls of Summary Judgment Practice
By Tracy DiFillippo and Michelle Alarie – November 18, 2014
The Seventh Circuit recently made clear what is and is not acceptable.

Are Insurance Investigative Documents Work-Product-Protected?
By Steven M. Richard – November 18, 2014
There is a lack of uniformity in federal courts’ application of the work-product doctrine in third-party accident cases.

The Changing Landscape of General Jurisdiction Post-Bauman
By Adam W. Braveman – June 18, 2014
This decision will have an immense impact on a foreign corporation's amenability to bring suit in U.S courts.

"Self-Serving Testimony" and Summary Judgment Standards
By Jeffrey G. Close – June 18, 2014
Is there a split between the Fifth and Seventh Circuits?

The Problem of the Old Deposition and a New Party at Trial
By Michael Lowry – June 18, 2014
A deposition needs to be admissible, and that may depend on who is a party at the time of trial.

Supreme Court's CAFA Decision Changes Law in Fifth Circuit
By Paul Thibodeaux and Danny Dysart – June 18, 2014
The Court's decision on CAFA removal of parens patriae mass-action suits and how it impacts future mass-tort litigation.

Trial Motion Practice Pointers Part II: Post-Trial Motions
By Betsy Collins and Taylor N. Barr – February 14, 2013
A nuts-and-bolts look at common pre-, in-, and post-trial motions in federal court.

Expert Testimony Part II: Presenting Expert Opinions in Narrative Form
By Betsy P. Collins – January 27, 2014
Tips and lessons learned on how to present direct testimony of experts in narrative form in lieu of direct examination.

FRCP Proposed Amendments: Changing the Rules
By Jay Worthington, Emily Seymore, and Katherine Kenney – January 27, 2014
A detailed look at ways the amendments would alter how discovery and case management are handled.

J. McIntyre Two Years Later: The Stream-of-Commerce Test Keeps on Rolling
By Katherine G. Cisneros – January 27, 2014
There doesn't appear to have been any shift in jurisprudence since the case was decided.

The Real Application of FRCP 1 to E-Discovery
By Regan Kirk, Kevin Broughel, and Carla Walworth – January 27, 2014
Aspire to keep it manageable.

2013

Vanishing Trial Skills
By Hon. Charles S. Coody – May 22, 2013
Effective and persuasive person-to-person skills are still fundamental even in our instant-communication environment.

ERISA Conflict Preemption: Embracing the Treacherous Path
By Gillian W. Egan – May 22, 2013
Do not shrink from using ERISA conflict preemption as a defense.

FRE 502, "Inadvertence" in Privilege Waiver, and Avoiding Malpractice
By Jeffrey G. Close – May 22, 2013
It is absolutely necessary to at least consider the implications of a 502(d) order and probably desirable to have one in almost all cases.

Judge Scheindlin Addresses Keyword Searches
By Andrew J. Herink – May 22, 2013
The best-known SDNY judge on e-discovery outlines more best practices.

Strategic Use of E-Discovery Counsel to Manage Risk and Cost
By Jeffrey C. Sharer and Colleen M. Kenney – May 22, 2013
Complex and rapidly changing law and technology make e-discovery counsel a wise investment, if not an ethical requirement.

Your Questions Answered: Preparing Your Witness for a Deposition
By Kevin Broughel and Chris Jalian – May 22, 2013
Answers to some of the more common questions submitted during a recent seminar.

Trial Motion Practice Pointers Part I: Pretrial and In-Trial Motions
By Betsy Collins and Taylor N. Barr – February 14, 2013
The first in a two-part series offering a nuts-and-bolts look at common trial motions in federal court.

The Power Prep: Effective Preparation of Your Client for a Deposition
By Erin E. Rhinehart – February 14, 2013
Strategic planning is necessary to ensure a successful deposition.

Technology-Related Ethics Rules Changes Litigators Must Understand
By Seth H. Row – February 14, 2013
New changes to the Model Rules of Professional Conduct take into account e-discovery challenges.

Using Expert Testimony by Plaintiffs to Oppose Summary Judgment: Part I
By Betsy Collins – February 14, 2013
Pay close attention to the rules pertaining to admitting expert testimony in summary judgment briefing.

Satisfying the "Meet and Confer" Requirement in Federal Court
By Nicholas E.O. Gaglio and Aaron J. Feigenbaum – January 28, 2013
Counsel should always check the local rules, their judge’s individual practices, and case law as soon as a discovery dispute arises.

2012

Avoiding the Pitfalls of Alternative Billing Arrangements
By Betsy P. Collins – December 3, 2012
While the hourly rate is a known quantity for law firms, alternative fee arrangements can be fraught with peril.

Class Certification after Wal-Mart v. Dukes
By Ashish Prasad – November 12, 2012
Following Dukes, courts are likely to consider whether common questions have common answers.

Expert Testimony Admissibility after Wal-Mart v. Dukes
By Dennis S. Ellis, Katherine F. Murray, and Nicholas J. Begakis – November 12, 2012
Counsel should be mindful of the Supreme Court's comments in Dukes, and be prepared to respond to a full Daubert challenge at the class-certification stage.

The Fifth Amendment Versus Compelled Production of Encrypted Data
By Jayashree Mitra and Stefan Mentzer – November 12, 2012
The case law on the constitutional protections for compelled production of encrypted data is contradictory and uncertain.

Litigation 101: Ethics Related to the Use of Contract Attorneys
By Gregory M. Boyle and J.H. Jennifer Lee – November 12, 2012
It is critical for attorneys to understand the ethical considerations that apply to work performed by their contract brethren.

Undue Burden, Proportionality, and Cost-Shifting in E-Discovery
By Margaret Rowell Good – November 12, 2012
Attorneys must understand and be prepared to use the rules of civil procedure as they relate to electronic information.

Tips for Winning at Oral Argument
By J. Bradford McCullough – September 20, 2012
Know the record, know the law and the correct standard of review, and be organized, but not scripted.

What Should I Expect From My First Jury Trial?
By Matthew Bakota – September 20, 2012
The answer is invaluable experience, which is evident as two Burr Forman associates, describe their first federal jury trial.

Raising Delicate Matters with the Judge in Pending Litigation
By Hon. Marvin Aspen – August 30, 2012
A sitting federal judge offers 10 pieces of advice on how to handle unusual circumstances.

Defensive Strategies in Discovery: A Refresher
By Kathleen B. Havener – August 30, 2012
By following these tips, your discovery should put you in good stead for dispositive motions and trial.

Pornography and E-Discovery
By Rebecca James – August 30, 2012
The line between work and private life is no longer as clear as it used to be.

Civil Discovery Standards Influence New Criminal Guidelines
By Anne M. Chapman and Joseph N. Roth – August 30, 2012
The new recommendations are a step toward formalizing practice and expectations involving ESI in federal criminal cases.

The Risks of Electronic Data Over-Preservation
By Anne Kershaw and Shannon Spangler – August 30, 2012
It may be costing you millions to save data that is of little to no value.

So You Want to Depose Opposing Counsel?
By Edna Selan Epstein – August 27, 2012
A license to practice law does not automatically exempt an attorney from being subject to a subpoena to produce documents or to testify.

Do Twombly and Iqbal Apply to Affirmative Defenses?
By Carla R. Walworth, Mor Wetzler, and Jessica Oliva – June 13, 2012
With little guidance from the courts, the old adage applies: Know your judge.

Discoverability of Deposition Breaks
By Raymond P. Ausrotas – June 13, 2012
Two leading cases are instructive on the subject of deposition recess.

Ethics of Using Social Media During Case Investigation and Discovery
By Seth I. Muse – June 13, 2012
A simple tweet or "poke" could turn the tide against you.

Judge Scheindlin Shines a Light on Metadata Production
By Som P. Dalal – June 13, 2012
The foremost judicial authority on ESI serves up the minimum requirements for production protocols.

When to Swear and When to Declare: Affidavit or Declaration?
By Matthew J. Bakota – May 9, 2012
The answer will depend on your jurisdiction.

New York Appellate Court Adopts Federal E-Evidence Preservation Standard
By Yitzchak M. Fogel – February 27, 2012
The Appellate Division, First Department, became the first New York appellate court to adopt the standard for spoliation originally established in Zubulake v. UBS Warburg LLC.

Draft Expert Reports Are Work Product? Since When?!
By Christian T. Balducci – February 6, 2012
Effective December 1, 2010, Federal Rule of Civil Procedure 26 underwent several significant changes affecting expert witness disclosure and discovery.

A Model Order Regarding E-Discovery in Patent (and Other?) Cases
By Steven R. Trybus and Sara Tonnies Horton – February 6, 2012
The model order from the Federal Circuit Advisory Council regarding e-discovery in patent cases includes proposals that are dramatically different from the majority of present e-discovery practices.

How to Write an Effective Reply Brief
By Damon Thayer – February 6, 2012
By following ten simple commandments you can master the art of writing an effective reply brief and in the process increase your chances of prevailing in any given case.

Can I Get a Witness: Obtaining Out-of-State Deposition Subpoenas
By Robin H. Jones – February 6, 2012
Most lawyers will at some point have to track down a witness residing in another state for purposes of obtaining discovery for use in a case pending before another state court.

Ten Tips from the Bench: Motion Practice Oral Argument
By Hon. Marvin E. Aspen – February 6, 2012
Here are ten tips for effective oral advocacy of contested motions, including a suggestion on how to request that opportunity where judges normally do not conduct oral argument on a regular basis.

New Amendments to Federal Venue, Removal, and Other Rules
By Charles S. Smith – February 6, 2012
The Federal Courts Jurisdiction and Venue Clarification Act of 2011 contains the most expansive changes to the Judicial Code since the Judicial Improvements Act of 1990.

2011

Protecting Work Product in Rule 30(b)(6) Depositions
By Gillian G. W. Egan – October 27, 2011
There is a particular attorney work-product objection to keep in mind if you have received, or are working to prepare, a 30(b)(6) deposition notice.

Twombly-Iqbal and Affirmative Defenses in the Third Circuit
By Jeffrey Soos – October 27, 2011
In two recent decisions, district courts in New Jersey and Pennsylvania have declined to extend the reach of Twombly and Iqbal to affirmative defenses pled pursuant to FRCP 8(c).

Litigation Holds, Social Media, and Employees' Online Data
By Patricia Eastwood, John D. Rue, and Peter Wilhelm – October 27, 2011
Lawyers and courts will be increasingly faced with the challenge of addressing whether, and to what extent, social media "documents" must be incorporated into the discovery process in individual cases.

Avoiding Minefields Associated with Discoverability of Social Media
By Damon Thayer and Nayiri Keosseian – October 27, 2011
According to conventional wisdom, the law typically lags about five years behind new technology. In today's rapidly changing world, that rule of thumb might be too generous.

Different Perspectives on Oral Advocacy
By Nicole D. Thumma and Samuel A. Thumma – October 27, 2011
Lawyers use persuasion every day in almost everything. How do persuasive skills used in day-to-day life differ from those used in the law, or do they differ at all?

Complying with Third-Party Subpoenas in Federal Court
By Erin E. Rhinehart – September 23, 2011
Guidance relating to compliance with third-party subpoenas for civil cases pending in federal court.

Successful Preparation and Service of Subpoenas in Federal Court
By Erin E. Rhinehart – September 23, 2011
Guidance for the preparation and execution of subpoenas for civil cases pending in federal court.

Application of Iqbal in the Second Circuit
By Carla R. Walworth and Mor Wetzler – February 28, 2011
This is a summary of recent cases decided in the Second Circuit relating to the Iqbal v. Ashcroft ruling.

Avoiding Common Pitfalls: Tips For Young Lawyers
By Betsy P. Collins, Ian Fisher, and Kent Lambert – February 14, 2011
Here is a list of bits of wisdom that have been accumulated from a number of wise lawyers over time and, unfortunately, from some of the things we learned the hard way.

Victor Stanley II: An Attempt at an Analytical Framework for Spoliation and ESI Issues
By Beatriz Q. Richmond – February 11, 2011
U.S. Magistrate Judge Paul W. Grimm issued a detailed and thorough opinion concerning spoliation of electronically stored information.

Seventh Circuit Iqbal Case Summaries
By Angela S. Fetcher – January 25, 2011
This is a selection of recent cases decided in the Seventh Circuit relating to the Iqbal v. Ashcroft ruling.